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State v Walaun [2021] PGNC 670; N9949 (6 May 2021)

N9949

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 794 OF 2019

STATE

V

KILALA WALAUN

Kokopo: Suelip AJ
2021: 6^th, 16^th, 21^st April & 4^th, 6^th May

CRIMINAL LAW – sentence – plea – grievous bodily harm s.319 Criminal Code – appropriate sentence – mitigating factors outweigh aggravating factors – compensation considered – sentence of 2½ years wholly suspended with conditions.

Cases Cited

Goli Golu v. State [1979] PNGLR 653
State v. Ray Sheekiot (2011) N4454
State v. Martin Konos (2010) N4157
State v. Albert Kavena [2015] N6085
State v. Esrom Jethro Hago [2019] N7870
State v. Kevin Ambai [2019] N7154
State v. Samuel Paranis [2009] N3761

Counsel

G Tugah, for the State
S Pitep, for the Prisoner

SENTENCE

6^th May, 2021

1. SUELIP AJ: On 19 of November 2020, the prisoner pleaded guilty to the charge of grievous bodily harm to one Steven Patara, thereby contravening section 319 of the Criminal Code.

2. This is my decision on sentence.

3. The facts are these. During the early hours of 6 January 2019, between 2 am and 3 am, the prisoner, his sister Irene Daniels and the victim were drinking at Irene’s house at Vunamami No. 1 village, Kokopo District, East New Britain Province. During the course of his drinking, his sister Irene went to a classroom to recharge her phone. Not long after, the victim followed her to the classroom. After about 2 hours of waiting, the prisoner started calling around for them and swore in frustration. That’s when the victim and the prisoner’s sister came out of the classroom. He suspected that they had sexual intercourse and was angry because Irene was his sister. He then got a knife and swung it at them, and the knife scratched the victim at the tip of his elbow. He then swung the knife again and cut the victim at the back of his left ear. His actions contravened section 319 of the Criminal Code.

4. Section 319 of the Criminal Code states:

319. GRIEVOUS BODILY HARM.

A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

5. The penalty the prisoner can face is not more than 7 years in prison. However, it is trite law that the maximum penalty is reserved only for the worse type offence: See Goli Golu v. State [1979] PNGLR 653.

6. The prisoner’s personal particulars are these. From the pre-sentence report, he is now 21 years old and lives at Bitamuli section, Ward 1, Vunamami, Kokopo Vunamami Urban LLG, Kokopo. In his Record of Interview dated 29 April 2019, he said he lived with his wife with no children. However, in the pre-sentence report, he said he lived alone in his one-bedroom house. Hence, it is unclear whether he is married or not.

7. Also in the report, it shows he is the fifth child out of 7 children and he completed grade 8 at Raluana Primary School and thereafter attained a Certificate in welding at Woolnough Vocational School in 2016. It shows that his last job was in 2020 when he was laid off due to the outbreak of the Covid 19 virus. The report also states that he has made compensation payment of 20 fathoms of shell money to the victim and he is willing to pay more.

8. The pre-sentence report is not exhaustive. Apart from the prisoner, only two other individuals were interviewed. Those are your father and the victim. His father says the prisoner is an average person and does not always listen or help with chores around the house. He says he would occasionally go to church, but he would rather just hang around with his peers. His father wants him to be put on probation because he feels sorry for him.

9. On the other hand, the victim says what the prisoner did to him was a result of miscommunication and he wrongly suspected him of courting his sister. He says both of them are now on talking terms but his family still demands compensation to settle the issue. He asks for K5,000 as compensation failing which the prisoner should be incarcerated but he personally does not wish for the prisoner to be imprisoned for this offence.

10. The prisoner has no prior convictions, and he is currently on police bail of K600. During allocutus, he said he is sorry for what he did and he said reacted like that Irene was his sister, and he was concerned about her.

11. In favor of the prisoner are these mitigating factors. He is young and a first-time offender. He also acted alone and pleaded guilty early in his Record of Interview. He has paid some compensation to the victim, and he is sorry for what he did. The reason he committed the offence is because he was concerned about his sister who was alone with the victim for almost 2 hours. He also tried to assist the victim in giving K100 for his medical attention soon after the attack.

12. Against him, the aggravating factors include the use of dangerous weapon on the victim, causing injuries to the victim’s left ear whilst the prisoner was drunk. This offence is also prevalent in the society.

13. In the case of State v. Ray Sheekiot (2011) N4454 and in State v. Martin Konos (2010) N4157, the Courts held the starting point for grievous bodily harm under section 319 of the Criminal Code is 3½ years. Further in State v. Albert Kavena [2015] N6085, Polume-Kiele J that the starting point of 3½ years is subjected to adjustments upwards or downwards depending on the relevant facts and circumstances such as: -

(i) the use of a lethal weapon
(ii) the offender inflicts injury on a vulnerable part of the body
(iii) offender part of a group
(iv) offender inflicts multiple injuries on the victim

(v) offender attacks victim with a lethal or non-lethal and the victim suffers permanent disability or life-threatening injuries

(vi) victim is unarmed or innocent

(vii) there is pre-planning

14. The State counsel referred to several case authorities but the most relevant one is the local case of State v. Esrom Jethro Hago [2019] N7870 where the prisoner pleaded guilty to the offence of grievous bodily harm. He had used a bush knife to cut the victim’s lower left arm. The Court held that inter alia, bush knives related offences are common in the country and sentenced the prisoner to 3 years imprisonment less time pre-sentence time, and the balance was suspended with probationary conditions.

15. Counsel for the prisoner also cited several case authorities but only the two local ones will be discussed. The first is the case of State v. Kevin Ambai [2019] N7154 where the prisoner and the victim were walking together on the road and arguing when the prisoner pulled out a busk knife and swung it at the victim who blocked it with his arm and the knife cut his wrist. The prisoner pleaded guilty to grievous bodily harm under section 319 and was sentenced to 5 years imprisonment less time spent in custody. The balance of his sentence was suspended, and he was placed on probation.

16. The other case is that of State v. Samuel Paranis [2009] N3761. In this case, the prisoner was enraged by stories from his two friends that the victim and his friends had sworn at him. He used a bush knife and caused injuries to the finger and adjacent tendons of the victim’s hand. He pleaded guilty to the offence and was sentenced to 2 years. One year was suspended and he served the balance in custody.

17. Both counsels agree that the prisoner should be sentenced to 3½ years imprisonment. They also agree that any compensation and suspension of sentence is within the discretion of this Court.

18. In this case, the mitigating factors outweigh the aggravating factors. The prisoner was remorseful and said he was angry because he was concerned about his sister who was with the victim for a long time. He suspected they were having sex, and this made him to cut the victim. The relationship between the prisoner and the victim is cordial as both are now on talking terms. However, the victim still wants the prisoner to pay K5000 as compensation to settle the issue. The prisoner has paid 20 fathoms of shell money (equivalent to K100) already to the victim but he wants more. I also note that he tried to give the victim K100 when he was being taken to the hospital for treatment after he cut him. That is a gesture of being apologetic for what he did.

19. The prisoner has spent only 8 days in police custody before he was given bail with conditions. This time will be deducted from any sentence given to him.

20. This is not a worse type case and so in considering all the above, I am satisfied that a sentence of 2½ years is warranted in this case. Time spent in custody before bail will be deducted from the prisoner’s sentence and the balance will be wholly suspended on the following conditions: -

(i) he will pay the sum of K2000 cash and 100 fathoms of shell money which is equivalent to K500 to the victim as compensation within 6 months from today.

(ii) he will enter into his own recognizance and promise to keep the peace and be of good behavior.

(iii) he will reside at Bitamuli section, Ward 1, Vunamami, Kokopo Vunamami Urban LLG, Kokopo, East New Britain Province and nowhere else.

(iv) he will report to the Probation Office at Kokopo first Mondays of every month between 9am and 3pm.

(v) he will not leave the province unless with permission from this Court.

(vi) he will assist with his family chores during his suspended sentence.

(vii) he will attend his local United Church every Sunday.

(viii) he will not commit another or similar offence.

(ix) he will not consume alcohol or drugs.

(x) if he breaches any of these conditions, he will be brought before this Court to show cause as to why he should not serve the remainder of his sentence in prison.

21. The Orders of the Court are:

(i) He is sentenced to 2½ years imprisonment.

(ii) His custody term is deducted.

(iii) The balance of his sentence is wholly suspended with strict compliance to conditions imposed.

(iv) His Police bail of K600 will be refunded to him and will go towards his compensation payment to the victim and his family.

Orders accordingly.

________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner